Custom, Excise & Service Tax Tribunal
Ge Intelligent Platforms Pvt Ltd vs Commissioner Of Central Excise ... on 2 September, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No.21690 / 2014 Application(s) Involved: E/Stay/22520/2014 in E/22245/2014-DB Appeal(s) Involved: E/22245/2014-DB [Arising out of 195-2014 dated 23/06/2014 passed by Commissioner of Central Excise , BANGALORE-I( Appeal) ] GE Intelligent Platforms Pvt Ltd 343, Building No.9, Velankani Tech Park, Electronic City , Hosur Road BANGALORE - 560100 KARNATAKA Appellant(s) Versus Commissioner of Central Excise ,Customs and Service Tax Bangalore-i POST BOX NO 5400...CR BUILDINGS, BANGALORE, - 560001 KARNATAKA Respondent(s)
Appearance:
Shri Tushal Gupta, Advocate For the appellant Shri N. Jagdish, Superintendent(AR) For the respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 02/09/2014 Date of Decision: 02/09/2014 Order Per : B.S.V.MURTHY The appellant is engaged in the manufacture of programmable logic controllers (PLC) classifiable under Chapter 90 of the Schedule to the Central Excise Tariff Act, 1985 (Tariff). During the period from April 2007 to January 2012, appellant supplied manufactured PLC systems and it is their submission that they had also supplied bought out materials from 3rd party vendors. The PLC system was manufactured by the appellant and was cleared from factory on payment of applicable duties and taxes. The bought out items were supplied to the customers directly by the vendors and the transactions were effected by making in-transit sales. It is the submission of the appellants that bought out parts never came to the appellants factory. It was also submitted that the transaction of bout out items was properly reflected in the accounts as well as in the Sales Tax returns.
2.1 During the month of January 2010, appellant had placed an order on Control Electric Company Pvt. Ltd. (CECPL) (a third party vendor) to supply mimic panel classifiable under Tariff heading 85371000 and deliver it directly to Bombardier Transportation Pvt. Ltd. (BTPL) (customer of appellant) on account of Delhi Metro Rail Corporation Ltd. (DMRC). CECPL billed to appellant and shipped the goods directly to BTPL. The vendor supplied the goods to BTPL at the site and has raised invoice No.199 dt. 29/01/2010 on the appellant. The appellant has sold the goods to BTPL without taking delivery and raised an invoice No.001557/2009-10 dt. 09/02/2010 to the customer against the above supply made by CECPL. CECPL has claimed the exemption of excise duty vide exemption certificate No.DMRC/DE/BS02/ED/2916/10 dt. 25/01/2010.
2.2. Similarly during the month of August 2010, appellant had placed another order on CECPL to supply one more mimic control panel and delivery it directly to BTPL on account of DMRC. CECPL billed to the appellant and shipped the goods directly to BTPL. CECPL had supplied the goods to the customers at their site and has raised invoice number 080 dt. 17/08/2010 on appellant. Appellant has sold the goods to BTPL by effecting an in-transit sale and raised invoice No.003628/2010-11 dt. 17/09/2010 to the customer for the said supplied made by CECPL. CECPL has discharged the excise duty on removal of goods from its factory as the exemption certificate could not be produced at the time of removal. CECPL delivery challan No.119 indicates that the goods were shipped directly from its premises and received by BTPL at DMRC site.
2.3. During the relevant period, similar types of transactions have taken place as a regular trade practice. In all such types of transactions, appellant is not the manufacturer of the goods and the same have not been removed from the appellants factory. Hence no excise duty has been discharged by the appellant on these transactions on the premise that the goods were not manufactured by it.
2.4. Thereafter proceedings were initiated by issue of show-cause notice on 25/04/2012 proposing to deny the exemption claimed by the appellants and taking a view that value of bought out parts have to be included. As a result of the proceedings, exemption has been denied and duty on bought out parts also demanded resulting in duty demand for more than Rs.19 lakhs.
3. It was submitted on behalf of the appellants that the Commissioner(Appeals) has denied the benefit of treatment of the bought out items valued for exclusion on the ground that the documents were not submitted before the original authority at the time of adjudication of the case. It was also submitted that there is no evidence to show that appellants have manufactured those items or they were received by the appellants. It was also submitted that on the bought out items, excise duty had already been paid and therefore question of payment of excise duty again does not arise. It was pointed out by referring to the show-cause notice that the allegation in the show-cause notice is limited to wrongful availment of Notification No.6/2003-Cus. and nowhere there was an allegation that bout out items were integral part of PLC manufactured and supplied to BTPL. On going through the records and after hearing both sides, we find considerable force in the arguments advanced on behalf of the appellants and we consider that it would be appropriate to remand the matter at this stage itself so that the matter can be considered in detail by the original adjudicating authority afresh. Accordingly, we set aside the impugned order and remand the matter to the original adjudicating authority. We request the original adjudicating authority to consider all the submissions that have been made before us and that may be made before him properly and record a finding on each and every submissions and come to the conclusion in accordance with law. We make it clear that the duty already deposited by the appellants need not be refunded even though we have set aside the impugned order till the matter is adjudicated afresh.
(Operative portion of the order pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER Raja.
5